Citation Nr: 1320019 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-46 578A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen service connection for bilateral hearing loss, and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1971 to December 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied reopening a previously denied claim for service connection for bilateral hearing loss. Although the RO declined to reopen the claim of service connection for bilateral hearing loss in the June 2007 rating decision, the question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board, because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to ensure a total review of the evidence. FINDINGS OF FACT 1. An October 2005 RO decision denied service connection for bilateral hearing loss. The Veteran did not file a notice of disagreement, and no evidence was received within the year following this decision. 2. The evidence associated with the claims file subsequent to the October 2005 RO decision is cumulative, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2005 RO decision that denied service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence not having been received, the claim of service connection for bilateral hearing loss is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an October 2005 rating decision, the RO denied the Veteran's claim for service connection for bilateral hearing loss, because the evidence did not show that the Veteran's bilateral hearing loss was related to service. He was properly notified of the October 2005 rating decision and did not appeal. No evidence was received by the RO within the year following that decision. 38 C.F.R. § 3.156(b). Therefore, the 2005 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the October 2005 RO decision included statements from the Veteran, the Veteran's service treatment records, and post-service VA and private treatment medical records which cover a period through October 2005. In an August 2005 VA audiological examination report, the VA examiner opined that based upon the Veteran's service treatment records and post-service work history, the Veteran's bilateral hearing loss was less likely than not related to active duty service. The Veteran also submitted multiple statements concerning his belief that his bilateral hearing loss was caused by noise exposure in service. In the October 2005 RO decision, the RO denied service connection for bilateral hearing loss, finding that the Veteran's current bilateral hearing loss disability was not related to his active service. As such, for evidence to be new and material, it would have to tend to show that the Veteran's current bilateral hearing loss disability is related to his active service. Briefly reviewing the evidence received since the October 2005 RO decision, a February 2006 private audiological examination report reflected current bilateral hearing loss, but did not provide an opinion of whether the Veteran's bilateral hearing loss was related to active duty service. Private treatment records from October 2006 to January 2007 reflect no treatment for bilateral hearing loss. In a November 2009 VA audiological examination report, the VA examiner opined that, based on the Veteran's history and service treatment records, that it was less likely than not that the Veteran's bilateral hearing loss was related to active duty service. The Veteran has also submitted multiple statements concerning his belief that his bilateral hearing loss was caused by noise exposure in service. It is important for the Veteran to understand that the fact that he has hearing loss at this time is not at issue. Further, there is no question that he was exposed to loud noise during his active service (the military is generally loud). The question the Board must decide is whether he has submitted "new and material" evidence in support of his claim to reopen and not simply reiterated his prior statements and supplied more evidence of a current hearing problem (which is not at issue). The Board finds that in this case the evidence that is new is not material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). In a January 2006 VA treatment record, the Veteran did not report any bilateral hearing loss and his ears were within normal limits. A February 2006 private audiological examination report reflected current bilateral hearing loss, but it did not provide an opinion of whether the Veteran's bilateral hearing loss was related to active duty service. See Smith v. West, 12 Vet. App. 312 (1990) (holding that if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened). Private treatment records dated from October 2006 to January 2007 are new, but do not reflect any evidence of current bilateral hearing loss or evidence tending to relate any current bilateral hearing loss symptoms to service. See Smith. The Board also notes the November 2009 VA audiological examination report, where the VA examiner opined that, based on the Veteran's history and service treatment records, that it was less likely than not that the Veteran's bilateral hearing loss was related to active duty service. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992) (evidence that is unfavorable to the appellant's case and which supports the previous denial cannot trigger a reopening of the claim). The Veteran and his representative have also contended that the Veteran's bilateral hearing loss is related to noise exposure in service. The statements made by the Veteran and his representative concerning causation are duplicative of statements made earlier by the Veteran, merely reasserting a previously rejected theory of relationship to service. Because the statement is simply a theory of nexus to service, but makes no factual assertion of chronic symptoms in service or continuous symptoms that would have any tendency to relate the current bilateral hearing loss symptoms to service, the Veteran's lay assertions of medical causation cannot serve as a predicate to reopen the claim. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993). The Board is mindful of the Court's decision in Shade; however, even given the low threshold to reopen a claim, the Board finds that this threshold has not been met. In sum, none of the evidence received since October 2005 constitutes competent evidence tending to show that the Veteran's bilateral hearing loss is related to his active duty service. As a result, the newly received evidence does not raise a reasonable possibility of substantiating the claim. Accordingly, the evidence received since the most recent final denial of the claim in October 2005 is not new and material, and reopening of the claim for service connection for bilateral hearing loss is not warranted. Until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen the claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The Veteran was advised of VA's duties to notify and assist in the development of the claim. An April 2007 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The letters also informed the Veteran of disability rating and effective date criteria and provided notice in accordance with Kent. The Veteran has had ample opportunity to respond and supplement the record. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Board further finds that the VA opinion obtained in this case is adequate as to the question of whether the Veteran's bilateral hearing loss is related to his active duty service. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file. The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue of service connection for bilateral hearing loss has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. ORDER New and material evidence not having been received, the appeal to reopen service connection for bilateral hearing loss is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs